magnify
Home Archive for category "International Tribunals" (Page 4)

Mandatory Derogation from Human Rights in Overseas Armed Conflicts? A Response to the Policy Exchange Proposals

Published on November 27, 2019        Author: 

 

 

A recent paper published by Policy Exchange, Resisting the Judicialisation of War, sets out a range of policy and legislative proposals for the incoming UK government. In this blog post, I raise concerns over three recommendations in the paper.

Contextualising the proposals

In the background to the Policy Exchange paper is the Ministry of Defence (MOD)’s 2016 announcement of a “presumption to derogate” from the European Convention on Human Rights (ECHR), particularly in “future overseas operations”. Derogation is the mechanism built into the ECHR to provide flexibility in times of war or emergency. It enables States to modulate the scope of Convention obligations and take measures consistent with the Law of Armed Conflict (if applicable).

The MOD’s 2016 press release asserted that litigation followed military operations in Iraq and Afghanistan on “an industrial scale”, and that derogation would protect troops from persistent “vexatious claims”. Previous Policy Exchange reports, Fog of Law (2013), Clearing the Fog of Law (2015) and Protecting Those Who Serve (2019), placed the blame for such claims squarely on judicial decisions applying the ECHR to extraterritorial armed conflicts, including Al-Skeini v UK (2011) 53 EHRR 18 and Smith v MOD [2013] UKSC 41.

This resulted in what Policy Exchange calls the ‘judicialisation’ of war. The application of the ECHR to military operations is alleged to hinder commanders by generating risk aversion, leading to the hyperbolic claim that the military risks “defeat by judicial diktat”. The recent paper is the latest instalment in Policy Exchange’s coordinated efforts to sway UK policy in this area.

Derogation is the proposed workaround. Read the rest of this entry…

Print Friendly, PDF & Email
 

The Inter-American Court’s Advisory Function Continues to Boom – A few comments on the requests currently pending

Published on November 25, 2019        Author: 

 

 

Just on the same day that Evo Morales had asked the Bolivians to re-elect him for the fourth time as President, Colombia’s President Iván Duque apparently followed his words with deeds by filing a further request for an advisory opinion to the IACtHR. Already in his opening speech at the occasion of the Court’s last special session held in Colombia this summer, Duque had announced that his government was working on a request asking the Court to clarify whether or not a human right to be re-elected for indefinite terms exists. Then, on the day of the Bolivian elections, it was reported that the request had been submitted. An opinion by the Court contradicting that of the Bolivian Constitutional Court, according to which the possibility to be re-elected indefinitely constitutes a human right, could have destabilized a further Morales government. In light of the most recent events in Bolivia, including the resignation of Morales, the immediate reason for the request seems to be obsolete. But the issue of indefinite re-election remains topical. Not least, as also mentioned here, a Colombian State agent had indicated that the request was also relevant with regard to Nicaragua and Venezuela.

The request on re-election is already the third request currently pending before the Court, highlighting the continuing importance of the Court’s advisory function. Just a few weeks ago, the Court published a request filed by the Inter-American Commission on Human Rights (IACHR) regarding the guarantee of trade union freedom, its relationship to other rights, and its application from a gender perspective. The Commission’s request addresses a very important matter in times of a changing world of employment and also in light of the heavy protests in Ecuador and Chile which are basically rooted in the high rates of social inequality.

This post will focus on the first of the three pending requests, which submitted by Colombia in May. Not only is the May request politically sensitive, but it also raises some very interesting technical legal questions.

In its request of May, Colombia poses the following three questions to the Court: Read the rest of this entry…

Print Friendly, PDF & Email
 

Green Light from the ICJ to Go Ahead with Ukraine’s Dispute against the Russian Federation Involving Allegations of Racial Discrimination and Terrorism Financing

Published on November 22, 2019        Author: 

 

On 8 November 2019, the ICJ delivered its highly anticipated judgment in Ukraine v Russia on the preliminary objections raised by the Russian Federation with respect to the Court’s jurisdiction and the admissibility of Ukraine’s claims under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the International Convention for the Suppression of the Financing of Terrorism (ICSFT). The ICJ overwhelmingly rejected Russia’s preliminary objections that the Court lacks jurisdiction to entertain Ukraine’s claims under both CERD and ICSFT, and found that Ukraine’s Application in relation to CERD claims was admissible. The ruling was hailed as a victory by Ukraine, as it clearly achieved more than it bargained for at this stage of proceedings, given rather modest provisional measures that were earlier granted by the Court only under CERD (see more here). Ukraine succeeded in avoiding the fate of Georgia, whose case against Russia under CERD – arising out of the 2008 Russia-Georgia war – was rejected on jurisdictional grounds and did not proceed to the merits stage.

The Ukraine v Russia dispute is narrowly limited to Ukraine’s claims under CERD with respect to the situation in Crimea, and claims under ICSFT with respect to the ongoing armed conflict in eastern Ukraine. However, it touches upon some broader highly contested issues related to the unlawful occupation/annexation of Crimea and Russia’s degree of military involvement in the conflict in eastern Ukraine, which are beyond the scope of the judicial inquiry at the ICJ (see more here). The proceedings are complicated by the Parties’ divergent accounts of factual circumstances surrounding the situation in Crimea and eastern Ukraine, which will become even more prominent at the merits stage. In order to determine its jurisdiction ratione materiae under the respective compromissory clauses in both CERD and ICSFT, the Court had to determine whether the acts of which Ukraine complained fall within the provisions of both treaties. Further to this, the Court had to ascertain the fulfilment of the procedural preconditions for the seisin of the Court under both instruments. Read the rest of this entry…

Print Friendly, PDF & Email
 

The Gambia’s gamble, and how jurisdictional limits may keep the ICJ from ruling on Myanmar’s alleged genocide against Rohingya

Published on November 21, 2019        Author: , and

 

On 11 November, The Gambia filed an Application instituting proceedings and requesting provisional measures at the International Court of Justice (ICJ) in relation to the genocide allegedly committed by Myanmar against the Rohingya (for a first analysis of the Application, see this post by Priya Pillai). As notably reported by The New York Times and The Washington Post, the application is at least in part a personal quest for justice by The Gambia’s Minister of Justice and Attorney General, Abubacarr Marie Tambadou, who acts as The Gambia’s Agent and previously worked for the prosecutor of the International Criminal Tribunal for Rwanda. The Gambia’s application is backed by the Organisation of Islamic Cooperation (of which The Gambia is a member) and its legal team is led by the US law firm Foley Hoag (see here). As we will argue below, the peculiar origins of this quest for justice may well be determinative for the establishment of the ICJ’s jurisdiction.

Regarding the atrocities committed against the Rohingya, the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar has found ‘that the factors allowing the inference of genocidal intent are present’ (see here, para 1441). While there appears little reason to disagree with the Fact-Finding Mission’s conclusion, in this post we will not examine substantively whether the atrocities complained of constitute genocide. Instead, we will briefly sketch why it makes sense for The Gambia to seize the ICJ while proceedings relating to the Rohingya are already going on at the International Criminal Court (ICC), after which we will address the request for provisional measures.

Different nature of the ICJ and ICC Proceedings

Just three days after The Gambia submitted its application to the ICJ, Pre-Trial Chamber III of the ICC authorized the Prosecutor to investigate the situation in Myanmar/Bangladesh (see here). As Myanmar is not a party to the Rome Statute, and as the position of China and Russia make a UN Security Council referral highly unlikely (see eg here), the Prosecutor has opened an investigation on her own initiative. The investigation ‘geographically’ focuses on Bangladesh, Myanmar’s neighbouring country to which over 742.000 Rohingya refugees have fled (see here). Bangladesh is a party to the Rome Statute, and accordingly provides a jurisdictional link to the Court. Read the rest of this entry…

Print Friendly, PDF & Email
 

Part II: What can be done about the length of proceedings at the ICC?

Published on November 18, 2019        Author:  and

 

Editor’s note: This is Part II of a two-part post. See Part I here.

Recent improvements

In recent years, the Assembly of States Parties, Presidency, Chambers, Registry, and Office of Prosecutor have all made efforts to make the ICC proceedings more efficient.

Back in 2010, the Assembly of States Parties established the Study Group on Governance to expedite the proceedings, and enhance the ICC’s efficiency and effectiveness. In 2012, the ICC created the Working Group on Lessons Learnt to take stock of existing practices and consider measures for improvement. These two groups have, together, galvanised other efforts to tackle the issue. Such efforts include proposing amendments to the Rules of Procedure and Evidence, in particular rules 132 bis and 68, later adopted by the Assembly of States Parties.

By a resolution in December 2014, the Assembly of States Parties requested the development of qualitative and quantitative performance indicators for the Court. The first report on performance indicators was published in November 2015 with the stated goal that ICC proceedings should be “expeditious, fair and transparent at every stage”. It identified ten non-exhaustive factors as likely to affect the length of proceedings. It suggested that these factors could be used to provide benchmark estimates for the likely duration of cases and that the degree of variance from such benchmarks would be the eventual performance indicator. The 2015 report identified three other areas of concern: the interstitial periods between different stages of the proceedings, judicial reaction time in providing decisions on filings, and the fullest possible use of the courtrooms. Read the rest of this entry…

Print Friendly, PDF & Email
 
Tags: ,

Part I: What can be done about the length of proceedings at the ICC?

Published on November 15, 2019        Author:  and

 

Editor’s note: this is Part I of a two-part post.

“Judgement does not come suddenly; the proceedings gradually merge into the judgement.”

Franz Kafka, The Trial

Jean-Pierre Bemba made his first appearance before the Pre-Trial Chamber in July 2008. His trial began in November 2010 and lasted four years. Two more years passed before the Trial Chamber found him guilty in March 2016. Another two years passed before the Appeals Chamber finally acquitted him in June 2018. He had been in custody for almost a decade. Other trials at the ICC have lasted nearly as long.

Long proceedings are not unique to the ICC. The most striking case must be the Nyiramasuhuko et al trial at the ICTR. There were six accused, arrested between 1995 and 1998. The trial began in June 2001. All six were convicted ten years later, in June 2011. Their appeals were not resolved until December 2015, by which time one of them had been in detention, awaiting the final resolution of proceedings, for twenty years.

The problem of lengthy criminal proceedings plagues domestic judicial systems, too. Indeed, a significant number of applications before the European Court of Human Rights (“ECtHR”) concern alleged violation of the right to a fair trial within a reasonable time under article 6 of the European Convention of Human Rights (“ECHR”). The extent of the problem in certain countries has prompted the ECtHR to resort to the so-called ‘pilot judgment’ procedure.

What is a reasonable length for criminal proceedings? Read the rest of this entry…

Print Friendly, PDF & Email
 
Tags: ,
Comments Off on Part I: What can be done about the length of proceedings at the ICC?

The European Court of Human Rights and Workplace Surveillance: Where is Article 31(3)(c) VCLT?

Published on November 14, 2019        Author: 

 

Although one may be familiar with criticisms of the EU’s self-contained approach to its own legal system, this case of fragmentation is not limited to the EU alone. In fact, in one of the more recent cases on the docket of the European Court of Human Right (ECtHR), it was the Court’s Grand Chamber that adopted a self-contained attitude towards the interpretation of the European Convention on Human Rights (ECHR). It did so by failing to account for EU rules concerning workplace surveillance which were relevant for the interpretation of the ECHR.

In López Ribalda and Others v. Spain (Applications nos. 1874/13 and 8567/13) (the Decision), a Spanish employer installed hidden CCTV cameras as part of an investigation into ‘inconsistencies between the stock level and the sales figures’ (§12 of the Decision). The employees were not informed about the existence of such cameras (§13 of the Decision). Subsequently, some of them were filmed while stealing (or while they were aiding other people who were stealing goods from the supermarket) and were dismissed (§§14-16 of the Decision). The dismissals were challenged in the Spanish courts as the evidence used for this was obtained through an act (covert video surveillance) which (allegedly) breached the applicants’ right to protection of privacy. However the Spanish courts rejected these claims. It was considered that the employer acted in a proportionate manner, as the measures were necessary, were limited in time and were focused on the supermarket’s checkout counters (§§19-39 of the Decision). Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on The European Court of Human Rights and Workplace Surveillance: Where is Article 31(3)(c) VCLT?

Of Babies, Bathwater, and List B Judges at the International Criminal Court

Published on November 13, 2019        Author: 

 

The Open Society Justice Initiative recently released an excellent report on the selection of judges at the International Criminal Court (“Raising the Bar”). It is a detailed and thoughtful report combining often eye-opening interviews and desk scholarship. It makes a number of very important recommendations about improving the process by which ICC judges are nominated and elected. In this post, however, I wish to take issue with one of the report’s key recommendations. It is only one recommendation, but it is an idea which is increasingly frequently put forward in various fora as a sine qua non of effective International Criminal Court reform.

This is the suggestion that the only criterion for appointment to the ICC judiciary should be excellence in the practice of criminal law. Thus, the suggestion goes, the statutory provision that judges may be elected either on the basis of expertise in criminal law and practice (the “List A” judges) or expertise in relevant areas of international law and practice (the “List B” judges) should be abolished.

The Open Society Justice Initiative report certainly lends significant credence to the view that the List B route to the ICC bench has on occasion been used to appoint lawyers who have spent their career as diplomats and not prosecutors, defenders, judges, or scholar-practitioners.

However, the idea that a significant number of the Court’s woes would be corrected if only it were properly staffed with solid criminal law judges is, I think, overstated. Let’s briefly consider a few of the decisions of the Court which have been most maligned in recent commentary. Read the rest of this entry…

Print Friendly, PDF & Email
 
Tags: ,

Provisional Measures in Ukraine v. Russia: From Illusions to Reality or a Prejudgment in Disguise?

Published on November 8, 2019        Author: 

 

On 19 April 2017, the ICJ rendered an Order dealing with Ukraine’s request for provisional measures concerning the alleged violations by Russian Federation of both the International Convention for the Suppression of the Financing of Terrorism (‘ICSFT’) and International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’).

In assessing the request for provisional measures, the Court moved from requiring plausibility of rights to requiring of plausibility of claims. The latter constitutes a higher threshold compared to the former eloquently described by Judge Abraham in his separate opinion appended to the Pulp Mills judgment and consistently followed by the ICJ as discussed below.

This new test requires the Court, at the provisional measures stage, to consider aspects of the merits, which relates to the probability of the claim’s success, and goes beyond a pure jurisdictional analysis. This post examines the limits of Court’s assessment of the merits of a dispute in the context of a request for provisional measures, in the light of the binding nature of such measures and the need for balance between prejudgment and the protection of adjudication’s consensual nature. Does a requirement of factual plausibility disturbingly blur the distinction between merits and incidental proceedings? Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on Provisional Measures in Ukraine v. Russia: From Illusions to Reality or a Prejudgment in Disguise?

An Arusha-based World Court on Human Rights for African States?

Published on November 7, 2019        Author: 

 

The Arusha-based African Court on Human and Peoples’ Rights (ACtHPR) enjoys a distinctively broad contentious jurisdiction extending to ‘all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned’ (Article 3(1) of the Protocol to the African Charter on Human and Peoples’ Rights (ACHPR)). The ACtHPR’s striking feature sets it apart also from most international courts. One may even argue that, as far as African States are concerned, the ACtHPR functions as a world court on human rights by consolidating human rights obligations of State parties under the auspices of a single judicial body on a regional level. In this post I will offer a few, brief thoughts on some of the legal issues pertaining to the material jurisdiction of the ACtHPR. For a detailed analysis of these matters see my recent article in the Human Rights Law Review.

The ACtHPR’s approach

The ACtHPR has proved itself willing to exercise its material jurisdiction to the fullest possible extent. It systematically applies, and finds violations of, other human rights treaties, including regional, sub-regional and UN treaties, and it orders the respondent States to comply with their respective obligations. Some scenarios on how applicants submit complaints are:

  1. bringing a case claiming a violation of a right which is not protected under the ACHPR but is protected by another treaty ratified by the State concerned;
  2. alleging a breach of a right which, although included in the ACHPR, is formulated in another treaty in a manner that ensures a higher level of protection (see, Lohé Issa Konaté);
  3. claiming a violation of a human right which is protected in the same way under both the ACHPR and another treaty, but no mechanism is envisaged or is available to the applicant under that other treaty to bring an individual complaint (see Tanganyika Law Society);
  4. choosing to bring a complaint before the ACtHPR (instead of, or in addition to, another international body) as a litigation strategy (e.g., physical proximity to a forum, litigation costs, avoidance of stricter admissibility criteria before UN human rights bodies).

New designs and old anxieties Read the rest of this entry…

Print Friendly, PDF & Email